Court grants City Attorney Herrera’s motion to dismiss bid by ‘Restore Hetch Hetchy’ to drain century-old reservoir, which provides water to more than 2.6 million residents
SAN FRANCISCO (April 28, 2016)—A Tuolumne County Superior Court judge has rejected a state constitutional challenge by the Oakland, Calif.-based advocacy organization, “Restore Hetch Hetchy,” which sought to drain a reservoir that serves pristine drinking water to more than 2.6 million San Francisco Bay Area residents. Judge Kevin M. Seibert issued the 18-page order late this morning, granting City Attorney Dennis Herrera’s motion to dismiss the case. In doing so, the Sonora, Calif.-based judge largely agreed with Herrera’s arguments that restoration advocates’ proposed constitutional interpretation was both pre-empted by federal law (specifically the Raker Act of 1913) and also time-barred by nearly nine decades.
In what Judge Seibert described as “an abundance of fairness and caution,” he granted the “Restore Hetch Hetchy” plaintiffs leave to amend their complaint. But he added that he was “unable at this juncture to see how the Petition is capable of being amended to avoid preemption or the statute of limitations.”
“Draining Hetch Hetchy Reservoir is a terrible idea that an overwhelming majority of San Francisco voters rejected in 2012,” Herrera said. “This lawsuit was a bid by the very same advocates to accomplish in a Tuolumne County Courthouse what they couldn’t in a San Francisco election. I’m thankful to Judge Seibert for his thorough consideration of the law, and for his compelling conclusions. I’m also grateful to the San Francisco Public Utilities Commission, under the capable leadership of Harlan Kelly, for supporting our efforts in this litigation, and also for maintaining a pristine water system that remains a marvel of civil engineering and public service to millions.”
“The Hetch Hetchy Reservoir supplies 85% of the water we deliver to 2.6 million people in the San Francisco Bay Area and generates clean greenhouse-gas-free hydroelectric power for San Francisco’s electricity customers,” said SFPUC General Manager Harlan L. Kelly, Jr. “We appreciate the efforts of City Attorney Dennis Herrera and his dedicated staff as they continue to defend the City’s right to serve clean water and clean energy to residents, businesses and vital City services 24 hours a day, 7 days a week. We also want to thank representatives from the Bay Area Water Supply & Conservation Agency (BAWSCA) and the Modesto and Turlock Irrigation districts for their participation in this process.”
San Francisco voters rejected a related proposal by the Restore Hetch Hetchy advocacy group by an overwhelming 77 percent of the vote in 2012. In their lawsuit filed just over a year ago, the organization contends that the operation of the O’Shaughnessy Dam and Hetch Hetchy Reservoir violate the California Constitution. Herrera’s office countered that the lawsuit was preempted by federal law, and time-barred by the applicable statute of limitations. San Francisco’s demurrer additionally argued that the California Constitution does not, in fact, prohibit the reservoir; Judge Seibert’s ruling did not reach that issue.
The case is: Restore Hetch Hetchy v. City and County of San Francisco et al., Tuolumne County Superior Court, Case No. CV 59426, filed April 21, 2015. For additional information on the San Francisco City Attorney’s Office, visit https://www.sfcityattorney.org.
- Order on Demurrer to Verified Petition for Writ of Mandate and Complaint for Declaratory Relief; Order on Defendants’ Motion To Strike (April 28, 2016)
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